Henna Artists
Catherine Cartwright-Jones c 2004
|
This information is intended to help henna artists understand their copyright rights and responsibilities. This is not legal advice! If you need legal advice, please contact an attorney! Copyright
Basics for Henna Artists
How do you copyright your henna work?You
automatically own copyright on all your original henna work, patterns
and
photos. Your original work is your property and you don’t have to
formally
register your work to own it. If it’s your work, it’s
copyrighted the moment you “manifest” it!
If you have an idea, and haven't manifested it, you can't claim copyright just by having the "idea" first. You copyright your manifestation of that idea. How do you prove and defend ownership of your copyrighted henna work? If
you register pictures and patterns of your original henna work with a
copyright
office, you can easily prove your ownership in court! If someone steals
your original pictures and patterns, and you want to take legal action,
you’ll
have to prove you originated and own the work. Registration
is solid proof.
If
you live in the US, begin your copyright registration process here:
http://www.copyright.gov/ If you live in Canada, begin your copyright registration process here: http://www.cb-cda.gc.ca/info/registration-e.html If you live in the UK, begin your copyright registration process here: http://www.copyrightservice.co.uk/ If you don’t live in any of the above, there is an international service here: http://www.copyrightwitness.com/register/ How else
can you prove copyright?
Your computer logs could prove you created the work, and when you
created it, if you scanned it or created it with a graphic program. If
you’ve emailed your work to someone as an attachment, that email could
prove you created the work, and a date that you created it.
If you create an original henna picture or pattern, only you have the right to reproduce it. Nobody else can reproduce your work without your permission! That is a violation of copyright law. Nobody
should copy or photocopy your henna pictures or patterns without your
permission.
Nobody should copy or photocopy your henna pictures or patterns and present it as their original work. When you create an original henna work, only you have the right to make a derivative work from your original work. Nobody else should create a derivative work from your work without your permission! That is a violation of copyright law. If
you create a henna work, and another person sees your henna work, they
should not create a henna work closely based on your work without your
permission.
If you create a henna work, and another person sees the henna work, they should not create a henna work closely based on your work and claim it is their own work. That being said, an originating henna
artist may say “yes” if you ask the originator for permission, keep the
copyright information intact, and cite them as source.
An originating henna artist who publishes their patterns on a website or in a book may expressly permit other artists to use the patterns in their own ephemeral henna art! If you use these patterns, do not present them as your own patterns. Keep the copyright information intact, and cite the source if you display work done from these patterns.. When you create a work, only you have the right to distribute it. Nobody else should distribute your work without your permission! That is a violation of copyright law. If
you have your henna pictures or patterns on a physical page, and you
give, loan or sell a copy of that page to someone else, they should not
copy that page, give it away, or sell it without your permission.
If you have your henna pictures or patterns in electronic files, and you give, loan, or sell someone a copy of those files, they should not give those files away or sell them without your permission. If you have your henna pictures or patterns on a web page, and another person views that web page, that person should not copy the work on that page, put it on their website, or sell it without your permission. When you create a henna pattern, or photograph your henna work, only you have the right to display that work. Nobody else should display your work without your permission! That is a violation of copyright law.
Another person should not use your pictures without
your permission.
Another person should not display your pictures and claim they are their own work. That
being said, an originating henna artist may say “yes” if you ask the
originator for permission, keep the copyright information intact, and
cite them as source.
If you create a henna design, you can permit another henna artist to use that design in their henna work. If
that person hennas your original design or a derivative of your work,
photographs their work and disseminates it (for instance,
puts it on their website) they should cite you as the source of the
design! Failure to do so may be interpreted as a violation of
copyright law!
Now it gets a little more complicated.
Trivial Similarity and Probative Similarity for Henna Artists What if you and another henna artist draw the same simple henna pattern? It
is normal for two henna artists to draw a simple, well-known pattern in
the same way.
If you and another henna artist have identical simple, well-known patterns, this is probably just coincidence. You and another person will probably to draw a heart, a pentagram, or an ankh in about the same way. This is not a violation of copyright law. What if you and another henna artist draw similar complicated patterns? If
you and another henna artist draw complex patterns with a few
superficial similarities, this is probably just coincidence.
Three artists can make a composition of 3 flowers, 5 leaves and a few squiggles. These three works may have some similarities, but the similarities are superficial. Even if these artists had seen each other’s work, these do not constitute a copyright violation because the similarities are trivial. This is TRIVIAL SIMILARITY.    This is what trivial similarity in henna patterns looks like. 3 henna artists drew 3 flowers, 5 leaves, and some twiddly things. These are similar henna patterns, but the similarities are coincidental and trivial. These henna patterns have trivial similarity. Trivial similarity is not a violation of copyright law. It is not normal for henna artists to draw complex patterns that are VERY similar. If
three henna artists draw very similar patterns, the patterns have
SUBSTANTIAL SIMILARITY. If you draw a pattern, and another
artist sees your work and then draws a very similar pattern based on
yours, and claims it as their own, this may be a case of PROBATIVE
SIMILARITY.
Probative similarity is a violation of copyright law!    This is what substantial similarity looks like in henna patterns: Three henna artists have drawn substantially similar flowers, leaves, and twiddles. The middle one is the originator, and the top and bottom ones are derivations. The
originating henna artist drew 3 flowers, 5 leaves, and 3 twiddly
things. Those flowers, leaves, and twiddlies have unique
characteristics and motifs. Two other
artists saw the first artist’s work and made derivative patterns,
useing the same unique
characteristics and motifs, but rearranging them slightly.
The henna patterns have a SUBSTANTIAL SIMILARITY.
If the originating artist can prove that the other artists saw, or had opportunity to see, the originating work and derived their patterns from it, that is PROBATIVE SIMILARITY. Probative similarity is a violation of copyright law! If you are the originating henna artist, another henna artist created a derivative work from your henna art without your permission, and/or without compensation, and/or without citation, you must decide whether or not to do something about the copyright violation. It is your right to make that decision. If
you believe another henna artist has derived work from your henna art,
you might want to stop that person from displaying, disseminating, or
selling it. You can ask them
to withdraw the work, cite you as source, or compensate
you.. Maybe they'll cooperate. Maybe they won't.
Maybe you don't really care. That's your personal choice. If you
DO care, and they DON'T cooperate, you can take action.
If you want them to withdraw the work, cite you or compensate you, and they refuse, you may want to take legal action. If that is the case, you will have to prove that you originated the work, and that the other artist had the opportunity to see and create a highly similar work to your original work. You will have to show PROBATIVE SIMILARITY by proving you did it first, and that the other person had access to your work and made a derivative work. Now, lets make it still more complicated.
Can the concept of probative similarity be applied to Genres and Folk Arts? YES! This has already been applied to narrow music genres such as folk music, ethnic music, and blues. Individual musicians create original music within these genres, and hold copyright to it. When other musicians write, record or perform derivative music without permission and/or compensation to the original composer, it is a violation of copyright law. Courts have awarded originating artists substantial damages for these copyright violations! There are some henna genres and folk arts that have a limited number of motifs, and they are arranged in narrowly defined ways. If there is a narrow range of henna patterns in a genre, how can you determine if someone is doing original work within that genre, or is doing derivative work? In
India, there are a lot of paisley patterns for henna, and they appear
similar to a person who doesn’t know much about paisleys!
However, every one of them is unique to the originating artist!
Artists’ works are as unique as their handwriting and
signatures. An expert in art can spot a copied work in the
same way that a handwriting expert can spot a forged signature.
There can be trivial similarity within a narrow folk art or genre. These
paisleys are superficially similar. They have TRIVIAL SIMILARITY
within their genre. A person who is very familiar with paisley
henna patterns will see that they are very different. Even if these
artists had seen each other’s work, these do not constitute a copyright
violation because the similarities are trivial. Each artist did
original work within a genre.
   This is what trivial similarity in henna patterns in a narrow genre looks like. 3 henna artists drew paisleys in a narrow henna genre. These are similar paisley henna patterns, but the similarities are coincidental. These genre paisley henna patterns have a trivial similarity. Trivial similarity is not a violation of copyright law. It is not normal for henna artists to draw complex patterns, even within a narrow genre, that are VERY similar. Below,
three henna artists have drawn very similar patterns in a narrow genre
or folk art, and the patterns have
SUBSTANTIAL SIMILARITY. If you draw a pattern, and another
artist sees your work and then draws a very similar pattern based on
yours, and claims it as their own, this may be a case of PROBATIVE
SIMILARITY.
Probative similarity is a violation of copyright law!    This is
what substantial similarity looks like in a narrow genre:
Three artists have drawn flowers, paisleys and twiddles. The middle one is the originator, and the top and bottom ones are derivations. One person drew a paisley with unique characteristics and motifs, a flower with unique characteristics and motifs, and some twiddlies with unique characteristics. Two other artists saw the first artist’s work and made derivative patterns. The deriving artists used the same characteristcs and motifs and rearranged them slightly. The henna patterns have a SUBSTANTIAL SIMILARITY. If the originating artist can prove that the other artists saw, or had opportunity to see, the originating work and derived their patterns from it, that is PROBATIVE SIMILARITY. Probative similarity is a violation of copyright law! If
you believe you originated a henna design within a genre, and another
henna artist made a derivative work without your permission, and you
want that artist to withdraw that work, and they refuse, you may need
legal assistance. You or your
legal representative should find “experts” in your specialized genre or
folk art! A person who is very familiar with paisley henna
patterns would see that these have SUBSTANTIAL SIMILARITY. These
experts can show a jury that within a narrow range of designs, such as
paisleys, each artist has unique characteristics. These “experts”
will be able to show what is unique about your work, and that the other
artist derived from your work, just as a handwriting expert can tell a
jury what is unique about your original handwriting and that another
has forged it. Then, if you can prove that you originated the designs,
and that the other person had access to your designs, and has done work
with a high degree of similarity to your designs, you can prove
PROBATIVE SIMILARITY within your genre. That will prove your
claim of copyright violation.
So: If you did an original henna work, and you believe someone copied or made derivative henna work from your original henna work and has put it on their website, and you want to stop them, what can you do? You can contact them and ask them to cite you as source, and/or withdraw the work, and/or compensate you for the work. An
ISP's terms of service states that a client may not carry out illegal
activites on a hosted website. Illegal activities include copyright
violations! If you can show the ISP that their client has
violated your copyright on their website, the ISP must suspend that
client's account.
Get your papers in order! You,
the originating henna artist, must prove that:
1)
You did
your work first
2) The other person had access to your work, and copied or derived from it. How can you prove you’re the originating artist? 1)
You show
that their henna work is very similar to your henna work
2) You show that registered your copyright first, or can otherwise prove that you originated the henna work 3) You show that you have dated records, such as emails or FTP logs, which prove that the other person saw or could have seen your work This shows PROBATIVE SIMILARITY: you originated the work; the other artist saw it and derived from it without your permission. That artist violated copyright law. If you believe you can prove that someone derived work from you and violated your copyright, and you can show PROBATIVE SIMILARITY, you may decide to get a lawyer and make the violator withdraw their work. You
may demand INJUNCTIVE RELIEF. This means they have to withdraw
the derived work during the copyright violation lawsuit. If you
win the lawsuit, and they are found to be in violation of copyright,
you may be awarded PERMANENT INJUNCTION, which means they have to
withdraw the work permanently. They may be forced to pay heavy
fines for their copyright violations, and you also may be awarded
damages. Violations of
copyright law are punishable by fines of $200
to $2,500 per violation.
What
does this mean to you as a henna artist?Do your own original henna work whenever possible. If you care enough about your original henna work to be willing to defend it in court, register it with a copyright office. Do not do copy another henna artist's work and present it as your own without permission and citation. Do not derive from another henna artist's work and present it as your own without permission and citation. Here are online resources to
help you better understand your legal rights and responsibilities as an
artist.
Basic Copyright Law for Artists http://www.lindonlaw.com/copyrights.htm http://www.templetons.com/brad/copymyths.html http://www.piercelaw.edu/tfield/copyvis.htm http://www.piercelaw.edu/tfield/ipbasics.htm http://www.arsny.com/basics.html http://www.the-artists.org/exh/art-copyright.cfm http://www.tms.org/pubs/journals/JOM/matters/matters-9805.html http://www.starvingartistslaw.com/ http://www.dacs.org.uk/ http://www.rightsforartists.com/ Derivative Work, Substantial and Probative Similarity Presently, most law cases of substantial
and probative similiarity exist for music, literature, and motion
pictures. These cases do not specifically address henna, but the
same concepts and laws apply to henna.
http://www.pli.edu/product/book http://www.fbrice.com.au/servlet/Display?p=202 http://www.music-law.com/copyrightinfringe.html http://www.pattishall.com/pdfs/UnderstandingSubstantailSim.pdf http://www.browerorganschi.com/topics.html http://www.funnystrange.com/copyright/derivative.htm http://www.whoosh.org/issue25/lee1a.html http://copylaw.com/new_articles/movie_infring.html Internet Copyright Law http://www.ipwatchdog.com/copyright.html http://global.bsa.org/usa/antipiracy/law/ http://www.netenforcers.com/pdf/dmca.pdf http://www.eff.org/IP/DMCA/ Digital Rights Laws You have permission to
print out and use the above henna patterns for inspiration and use in
your own henna
body art! Patterns illustrating trivial and probative
similarity by Justine Willowhawk, Alex Morgan
and Catherine Cartwright-Jones , c The Henna Page 2004. You may not put
these lineart
images on your website without the explicit permission of
Henna Page and/Catherine Cartwright-Jones you may not
publish
or disseminate them in any way, or any other use prohibited by
copyright
law. Violations of copyright law are punishable by fines of $200
to $2,500 per violation.
Can't find what you're
looking
for? Try: *"Henna,
the
Joyous Body Art"
the Encyclopedia of Henna Catherine Cartwright-Jones c 2000 registered with the US Library of Congress TXu 952-968 |